Volume 64 Issue 1 Dickinson Law Review - Volume 64, 1959-1960

10-1-1959

Clerkship, A Legal Anachronism? Clerkship, A Legal Anachronism?

Robert G. Meiners

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CLERKSHIP, A LEGAL ANACHRONISM?By ROBERT G. MEINERS*

S ERVICE as a clerk in the law office of a practicing attorney, by one who him-self aspires to become a lawyer, is by no means a modern invention. It is a

custom which has been handed down from generation to generation, for severalcenturies. "Legal education in the United States had its roots in English history,and in England preparation for the practice of law has been, in the main, throughapprenticeship training." 1

In those early days, substantial fees had to be paid for the privilege ofserving one's apprenticeship under a lawyer with an established reputation.'Gradually, this form of training gave way to university study. Clerkships,however, have not been completely eliminated from the American scene, and itshall be the purpose of this article to examine the role played by clerkship inour system of legal education with consideration given to its objectives, the prob-lems which it poses, and its advantages and disadvantages.

Before examining the five states having clerkship requirements, it shouldbe noted that "clerkship" will be used hereafter to mean a law "practice" clerk-ship as distinguished from a law "study" clerkship. The former is a requirementin addition to the completion of a prescribed course of study in a law school, inorder to qualify one for admission to the bar. The latter is a method of qualifica-tion for the bar, exclusive of any law school training. Although there are somestates which still recognize a law study clerkship, it has, in general, fallen intodisuse.

There are presently five states which have clerkship requirements. It isinteresting to note that four of these states, Delaware, New Jersey, Pennsylvaniaand Rhode Island, were members of the original thirteen colonies, and the fifth,Vermont, entered the Union in 1791.'

As far as duration is concerned, the clerkship requirements in these fivestates vary from six to nine months. They also differ as to when the applicantmay or must undergo his clerkship. This varies as follows: (1) merely requir-ing that the stipulated length of time be completed before admission to the bar,thus allowing the student to decide whether he shall fulfill his obligation duringthe summer months or wait until law school and the bar examinations have been

* A.B., Muhlenberg College; LL.B., Dickinson School of Law; LL.M., Harvard; AssistantProfessor, University of Santa Clara, College of Law.

1 Harno, Legal Education in the United States 4 (1953).2 Currie, The Materials of Law Study 17.3 Editorial, Added Clerkships Are Anachronistic, 27 HARv. L. REv. 2 (1958).

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completed; (2) requiring a certain amount of the clerkship to be completedafter law school and the bar examination.

There are also variations as to the other requirements. The requirement asto what a clerk must do during this period varies from a very general statementto certain specified requirements. Further, none of the rules provided for anyremuneration, and whether or not any is given varies greatly. Finally, as to thepreceptors themselves, there is a difference in requirements ranging from the sim-ple one that they 'be attorneys of that state to the more stringent requirement thatthey have practiced for a certain minimum length of time and have been ap-proved by a committee.

Delaware'

The clerkship is of six months duration. The rules do not define what ismeant by clerkship nor do they set forth in any degree of specificity the duties ofthe clerk. They also do not state when the clerkship may be performed otherthan that it must be completed before admission to the bar.

Delaware has the strictest requirement of the five clerkship states regardingthe length of time which one must have practiced law in order to qualify as apreceptor, the period being ten years. As an alternative to this, any justice, statejudge, or United States judge in Delaware can act as a preceptor. There is norequirement for any examination of the preceptor.

New Jersey5

The duration of the clerkship requirement is nine months, and although itwas reduced from twelve months in 1948,6 this is still the longest period requiredby any of the five states. This nine month period may be served at any time afterthe successful completion of eight months work at an approved law school, andit may be fulfilled at any time prior to, or subsequent to, the bar examination.

New Jersey is the only state which sets forth certain assigned duties of theclerk. These duties include attending different courts and observing the proceed-ings. The only other specified duty is to become "acquainted" with the usualduties of the sheriff and certain other county officers. Totaling the number ofdays during which the clerk must attend court,7 this requirement comes to lessthan one month out of a nine month requirement.

4 See Rule 31(2) (A) (f), Rules of the Supreme Court of Delaware.5 See Rule 1: 20-7, Rules of the Supreme Court of New Jersey.6 19 BAR EXAMINER 204 (1950). Originally it was five years. Gradually, attendance at a

law school was credited against part of the clerkship.7 One day must be spent in each of the following courts: Supreme (arguments); Superior,

Appellate Division (arguments); Superior, Law Division (contested motions, pretrials and jury

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All persons admitted to practice as attorneys after June 27, 1958, arecounsellors-at-law. At the present time any counsellor-at-law, who was eligibleto serve as a preceptor on July 1, 1959, (one who had been a member of theNew Jersey bar for at least three years) and any other counsellor-at-law, who hasbeen engaged in the general practice of law for at least five years, may be a pre-ceptor.

Rhode Island'

This state requires a six month clerkship which may be completed at anytime prior to admission to the bar. No specific duties are prescribed for thisperiod. Preceptors must be general practitioners within the state. This appar-ently excludes judges.

Pennsylvania"O

The time requirement in this state is six months. Pennsylvania requires thatat least four months be served after the bar examination, thus giving the precep-tee an election as to only two of his six months. As to the manner in which theclerk must occupy himself during the necessary period, there is only a generalstatement that he "apply himself in the preceptor's legal business."

Pennsylvania's idea of the necessary qualities in a preceptor are similar toDelaware's in that a length of time is specified during which the preceptor musthave engaged in the active practice of law. However, the time specified is fiveyears as compared to Delaware's ten. Clerking for a judge who has served in ajudicial capacity for five years is also permitted. The necessary practice need notbe a general practice. As will be discussed later, this could be significant be-cause a clerk could become associated with a preceptor who has a highly special-ized practice, and therefore he could conceivably receive instruction in only onephase of the law.

Unlike most states, Pennsylvania places a limit upon the number of clerksthat can be registered with a preceptor at any one time, the maximum beingthree. Also, Pennsylvania goes further than any of the other states in its quali-fication of preceptors 'by requiring that the preceptor be approved as to his fitnessby both the State and County Boards of Law Examiners.

trials, 1 day each); Superior Chancery Division, Non-Matrimonial (contested motions, pretrials andfinal hearings, 1 day each); Superior, Chancery Division, Matrimonial (contested motions and finalhearings, I day each); County (criminal); District and Municipal (1 day each); Workmen'sCompensation (trials); U.S. District; Federal Referee in Bankruptcy. In addition, one day mustbe spent observing the state legislature.

8 Rule 1: 21, Rules of the Supreme Court of New Jersey.9 Extracts from the Rules, Admission to the Bar, State of Rhode Island. See also Rules for

Admission to the Bar, West Publishing Co. (1955).20 See Rules 8 and 10, Rules of the Supreme Court of Pennsylvania.

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Vermont1

This state also has a six month requirement. The time when this periodmay be served is, more or less, at the option of the applicant, as long as it isserved during the two years immediately preceding his admission to the bar.Thus, he can fulfill his entire obligation during the summer months when mostcourts are in recess.

The rule does not attempt to state the duties of the clerk, other than to saythat he must "study." The only requirement for a preceptor is that he be anattorney in the state. Apparently, this would preclude judges.

In turning our attention from the specific requirements to the objectives ofthe clerkship system, we find that these objectives are generally said to be two-fold, 2 the inculcation of professional ethics and the gaining of "practical,""technical" knowledge. While some mention is made of the first of these objec-tives, by far the greater number of writers stress the second, or the gaining of the"how-to-do-it" ability. A representative statement would be the following:

.The purpose of the clerkship is to give the applicant a practical ideaas to the way in which problems of court and office are dealt with and at thesame time a conception of the proper standards of professional conduct whichdaily contact with a reputable older lawyer should confer.13

Especially in teaching of "practical" things, the claim is repeatedly madethat the law schools are not doing the job, cannot do the job, and, in any event,should not do the job. A few of the comments should suffice to give a clearerpicture. To the effect that law schools are not doing the job, one writer hassaid: "The most vocal criticism of legal education is that it is not practicalenough, or stated more broadly, that it does not adequately train the young law-yer in the skills of the practice." "4 To the effect that they cannot do the job, theDean of Temple Law School has said: "Personally, I am inclined to agree withthose who say that in the nature of things, it is impossible for the law schoolsto graduate lawyers who are fully qualified to practice on receipt of their di-plomas." in commenting that law schools should not do the job, it has beensaid that "... the law office is better equipped than the law school to do someparts of the educational job." 1"

11 See Rule 4, Rules of Admission of Attorneys in Vermont.12 Currie, The Law Practice Clerkship, 24 PA. BAR Ass'N. Q. 223 (1953).13 Jackson, Character Requirements for Admission to the Bar 11 (1952) also found in 20 Ford-

ham L. Rev. 305 (1952).14Harno, supra note 1 at 146.15 Boyer, Preceptors and The Law Practice Clerkship in Pennsylvania, 28 PA. BAR ,Ass'N. Q. 31

(1956).16 Cavers, Skills and Understanding, 1 J. LEGAL ED. 395, 400 (1948).

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While it is usually the older generation of lawyers who tend to view withalarm the alleged lack of practical knowledge on the part of young law schoolgraduates, this is by no means a universal rule. A former Harvard Law Revieweditor, in practice only two years, referred to the "brutal realization" by theyoung lawyer of his own inadequacy.1 7

An incidental objective, which is not mentioned too often, is that by havinga preceptor during his law school career, the student can have guidance in hisstudies, especially in the selection of elective courses. There are two obviouserrors to this view, however. First, it is possible that the student will interpret apersonal preference on the part of his preceptor as a universal attitude of theprofession. Second, a preceptor who has been out of school for a number ofyears, ". . . and is unfamiliar with the present-day law school practice of placingold labels on new courses and new labels on old courses,""i may give the wrongadvice.

The medical internship analogy is often applied to the clerkship system.If an internship is needed in the medical profession, some say, a fortiori it isneeded in the legal profession. Sometimes the argument is even more colorful,.as for example:

• . . Would you want a medical school graduate who had never observed anactual surgical operation to perform an emergency appendectomy or other seri-ous surgery upon you or your loved ones?

Certainly not, yet under the training provided generally for the legalprofession throughout the United States the public must submit to similar treat-ment at the hands of the inexperienced and untrained lawyer who has justgraduated from law school."'

The answer to this is that the success of the medical internship is due in largepart to the fact that the intern trains in a hospital. There is a staff of doctorson hand to train him and the hospital has financial support greater than any onepractitioner could claim which enables it not only to afford all the latest equip-ment, but also to pay the intern a wage. Naturally, an internship in an indi-vidual doctor's office would be quite another thing.2 ° The legal profession's lackof facilities comparable to those available to the medical profession has led atleast one writer to remark that: "... [It is considered impracticable to require

17 Silver, Law Students and the Law: "Experience-Employment" in Legal Education, 35A.B.A.J. 991 (1949).

18 Fuller, Legal Education and Admission to the Bar in Pennsylvania 89 (1952)."I Lefever, Is a "Legal Internship" Necessary? 26 PA. BAR Ass'N. Q. 139, 140 (1955).20 Kansas City Lawyers' Committee Investigates and Disapproves Internship Proposals, 30 J.

AM. Soc'Y. 192, 194 (1946). Note, 98 U. PA. L. REv. 710 (1950). Kirkwood, Requirements forAdmission to Practice Law (1949).

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intern training for lawyers because of the lack of the facilities comparable to hos-pitals for medical interns." 21

Is there really a danger that without a clerkship requirement the public willbe injured due to bungling, inept young lawyers? The professional journals arereplete with statements such as this one made by a judge:

Immediately upon admission to the bar, the new lawyer is privileged (1) totry a murder case, upon which the outcome of which a man's life as surelyhinges as in a delicate surgical operation, (2) to advise a testator . . . Life,liberty and property are at stake! . . . The legal profession should not educateits members at the expense of the public ... 22

To this, and similar comments, it might be answered, true, the younglawyer technically is privileged to do these things just as he is technically priv-ileged to single-handedly defend General Motors in an anti-trust action or drawup a new bond indenture for United States Steel. But, as a practical matter,will he? A former dean of the University of Pittsburgh Law School expressedthe view that the so-called "practical deficiencies" of young law school graduateswere greatly exaggerated. 2

' Further, even if there were a real danger that theyoung lawyer would, because of lack of training, inflict injury on his client inparticular or on society in general-and Dean Currie did not believe that thisdanger exists-a six month clerkship could not cure it.

In consideration of the same matter, the views of another educator arepertinent. Dean Stason of Michigan took note of all the criticisms that have beenmade and listed all the practical skills in which the critics desire the young lawyerto be competent. He came to the conclusion that it would take a minimum of tenyears to become competent in all of these skills, and that many lawyers wouldnot succeed even then. 24 Also pertinent is the fact that forty-five states do not re-quire a period of clerkship for admission to the bar. Is there any evidence thatthe public at large in this overwhelming majority of states is suffering at thehands of young lawyers who begin their practice without the benefit of clerk-ship? It would seem that the answer is "no" and that this alleged problem ismore theoretical than real.

When the Kansas City Bar considered a proposal for the adoption of clerk-ship requirements (and decided against it) they made the point that in fact aninformal clerkship system already existed. It was their experience that eventhe young graduates, who intended to go .into practice on their own eventually,

21 Brenner, Reports of Consultant and The Advisory and Editorial Committee on! Bar Examina-tions and Requirements for Admission to the Bar 7 (1952).

22 Lefever, supra note 19.23 Currie, supra note 12.24 Stason, Legal Education: Postgraduate Internship, 39 A.B.A.J. 463 (1953).

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will first get a position with an established firm or an older practitioner in orderto gain practical experience. With Dean Currie, they shared the doubt that any-one had ever been seriously injured by receiving incompetent advice from animmature attorney. And, even if such were the case, they doubted that a sixmonth clerkship would make any difference. Nor were they concerned with thepossibility that a businessman might be forced into bankruptcy because of badadvice about a complicated financial problem. As a practical matter, a business-man probably would not consult a young lawyer fresh out of school for adviceabout such a problem.2

As a matter of fact, how many young lawyers do start out on their own im-mediately upon admission to the bar? If the graduates of Harvard Law Schoolare any criterion, the answer is not many. Less than three per cent of them gointo practice on their own as soon as they complete school. Dean Griswold hassaid:

The overwhelming proportion of the graduates of our school, and I daresay of most other schools, go into offices and handle practical matters under thesupervision of experienced and able lawyers, and actually get a remarkably fineapprentice training without the stigma and subservience that are almost inherentin a formal apprentice system. 26 (Emphasis added.)

As was noted before, one of the objectives usually attributed to the clerk-ship system is the inculcation of professional ethics. In this connection, Pennsyl-vania instructs its preceptors to help their clerks "understand the ethics, duties,responsibilities, and temptations of the profession . . . [and] . . . develop ineach student a high standard of character." 2 No one will argue that this is nota commendable aim. In actual practice, however, Pennsylvania's hopes in thisregard appear to be falling short of the desired goal. In a state-wide survey con-ducted by the Junior Bar Association, it was found that over forty percent ofthose who had recently undergone a six month clerkship had received no instruc-tion whatever in "ethics." 28

In fact, the question has been much debated, whether or not "ethics" can be"taught" at all. Most of the controversy concerns whether or not the law school,rather than a clerkship, is the proper place to attempt it. There are those whosay that it can be successfully taught and those who say that it cannot. A reason-

25 Kansas City, supra note 20.20 Griswold, Legal Education: Extent to Which Know-How in Practice Should Be Taught in

Law Schools, 6 J. LEGAL ED. 328 (1954). Dean Griswold also said, regarding the alleged in-competence of young attorneys that, "I doubt very much, though that the suffering of the publicat the hands of the young lawyers is very serious."

27 Rule 8(b), Rules of the Supreme Court of Pennsylvania.28 The Law Practice Clerkship in Pennsylvania-A Survey and a Point of View, 25 PA. BAR

ASS'N. Q. 225 (1954).

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ably safe generalization would be to say that in any event, there is much dissatis-faction with the job which the law schools are doing in this area. This is oneof the conclusions which was drawn as a result of a survey of eighty-five lawschool deans.29

Even if it were conceded that the law schools are not and cannot "teachethics," is a clerkship the answer? At least one writer thinks that it is not be-cause, "The careless words of the practicing lawyer give our students the definiteimpression that once out of law school winning is what counts-ethics are forthe after dinner speeches." '0

If, on the other hand, preceptors earnestly carried out their duties, a clerk-ship might be an effective vehicle for inculcating ethical standards. Just as astudent in law school can be inspired by the close association with a distinguishedprofessor, so a clerk could be inspired by_ associating with his preceptor. Itmight even have a salutary effect on the preceptors since, as one dean has sug-gested, it might,". . . help to make lawyers more conscious of their professionalresponsibility if they knew they must be good examples to young men." "' How-ever, while clerkship might be a means to accomplish this, the same results canbe accomplished without clerkship if the other members of the bar scrupulouslylive up to the standards of the profession. Most young lawyers will be workingalongside older lawyers. The few who open up their own offices will still, intheir every day practice, come into frequent contact with other lawyers. Thus,every day of one's professional life he would be rubbing shoulders with hisbrethren. If all did their utmost to make their own professional conduct anexample for others, each man would be a teacher for all his associates. Further-more, a more stringent enforcement of the grievance machinery and disbarmentproceedings would deter those few who cannot or will not comply with thehigh standards of the profession. And of these few, even fewer would bepracticing if the character investigation of all applicants for bar admission weremore thorough.

Directing our attention to some of the problems posed by a clerkship system,we find that one of the major dangers existing is that the system will lead toexploitation. 2 It is possible that the clerk will be looked upon, not as a studentto whom an obligation to teach is owed, but rather, as a free or low paid office

29 Cheatham, The Inculcation of Professional Standards and the Punctions of the Lawyer. Thedean of a New York law school criticizes any attempt to "teach" ethics by expressing the doubtthat "a knave can be changed into an honest man by preaching to him." Report of the Committeeon Legal Ethics, 55 REPORT OF THE N. Y. STATE BAR ASS'N. 173, 174 (1932).

20 Stevens, Professional Responsibility-The Role of the Law School and the Bar, 6 J. LEGALED. 203, 208 (1953).

31 Cheatham, supra note 29.32 Rose, Apprenticeship and Probationary Plan for Admission to the Bar, 5 ALA. LAwYER 85,

88 (1944). See also 98 U. PA. L. REV. 710 (1950).

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boy. This may be especially applicable in the case of the first and second yearstudents since the preceptor may view their legal knowledge with misgivings,and, fearful lest they make a mistake that will cost him money, give them eitherno legal work or work of such a routine and insignificant nature as to offer themno challenge.

This could not happen? Lawyers are too altruistic to condone such practiceswithin their own profession? A look at the record shows otherwise. In re-sponse to the criticism voiced against the system by the then Dean of the Uni-versity of Pittsburgh Law School, 3 the Pennsylvania Junior Bar conducted asurvey and discovered that during this period, which was designed to trans-form inept law school graduates into practicing attorneys, ninety per cent of theclerks did some non-legal work for their preceptors; only one-third had anyexperience in preparing a case for trial; only one-half had ever attended a courttrial; only ten per cent were given the opportunity to become familiar withspecialized tribunals; under one-fourth had any experience in bankruptcy, laborlaw, tax law, business law or domestic relations; and only one-third eversearched a title.34 This is not a problem peculiar to Pennsylvania. Recentcriticism of the clerkship system as it exists in Rhode Island pointed out that,"More than one law clerk has found to his disappointment that, for the mostpart, his duties consist of running errands." 11 (Emphasis added.)

A second danger exists in that a clerkship requirement will work an eco-nomic hardship on students and raise still higher the constantly rising financialbarrier to the profession. Not only in most cases are the clerks paid absolutelynothing, but ". . .There is even a widespread notion to the effect that it issomehow improper to give the applicant substantial compensation during thisperiod.""6 Another commentator has said, "It is embarrassing if he or she is notpaid and at the same time, it violates the whole theory if he or she is paid." 11(Emphasis added.) On this problem of economic hardship, Dean Griswold hassaid:

I would be very sorry to see a formal apprentice system in this country....It tends to be quite undemocratic because it is extremely hard for the youngman to get into the field unless he has the means to get by the apprenticeperiod. There is a very real economic problem here. 8

33 Currie, supra note 23.34 Supra note 28. In a discussion among the members of the Executive Committee of the

Junior Bar ". . . there were recounted hours spent as office boys, messengers, file clerks and re-searchers, at -no salary." Smith, Rule of Reason, 17 THE SHINGLE 16 (1954).

35 Di Prete and Brill, Should the Clerkship Requirement be Abolished? 6 R. I. BAR J. 3(1959).

36 Currie, supra note 23 at 231.37 Krawitz, The Rural Lawyer and the Preceptor System in Pennsylvania, 28 PA. BAR ASs'N.

Q. 368 (1956).s Griswold, supra note 26.

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By way of contrast, it is interesting to see two comments with a differentpoint of view. One advocate of the system shrugs off this aspect of the problemby saying, ". . . this must be accepted as part of the terrific cost of proper pro-fessional training." "' A former Chairman of the New Jersey Board of BarExaminers said that this is something which the student should realize in advance,therefore, "... we simply have ignored the problem of the expense that isinvolved." 40

It is indeed a pity that the clerks, especially those with families to support,cannot ignore it. To them it is a very real and pressing problem. It should beremembered that since 1950, young men have faced a military obligation. Thismeans that many of them aie entering law school at an older age and with a wifeand family. A survey in one state shows that only thirteen percent of the lawschool graduates were under twenty-five at graduation and twenty-one per centwere over twenty-eight. Almost three-fifths were married and more than one-half had more than one dependent. 41 In a large city, sixty per cent of the grad-uates were married, forty-three per cent had between one and three dependents,and twenty per cent had three or more.42 Should these men who are willing totackle a chore as difficult as gaining admission to the legal profession while actingas the head of a family have still another roadblock thrown in their path? Is thelegal profession becoming one for only the sons of the wealthy?

On the matter of remuneration, this same survey indicates that over halfof the clerks received nothing, over seventy-five per cent receivedno more thanone hundred dollars per month and almost ninety per cent received under onehundred and fifty dollars per month. This made it necessary for fifteen percent to work part time at paying jobs, the majority as laborers.4

A system whereby a student must seek out a lawyer willing to act as hispreceptor presents another danger. It is fraught with the possibility of racialor religious discrimination.

Under [a clerkship] system the [student] is to a considerable extentdenied the chance to use as a weapon in combatting discrimination, his law

39 Lefever, supra note 19.40 Park, Legal Internships, 6 J. LEGAL ED. 504, 512 (1954).41 Supra note 28.42 Smith, supra note 34.43 Supra note 28. A survey conducted by the editors of the University of Pennsylvania com-

paring the economic condition of Pennsylvania clerks with New Jersey clerks indicates that thelatter generally fare better.

Remuneration Pa. N. J.N othing ................................... 48% 22%Mere expenses .............................. 14% 24%$150/mo. & under .......................... 24% 40%$150/mo. & over ........................... 14% 14%

Note, 98 U. PA. L. REV. 710 (1950).

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school record and the reputation he establishes in law school among his fellowstudents and teachers. 44

In rejecting clerkships, the Kansas City Bar was critical of the system because ofthe hardship on the boy from the wrong side of the tracks in finding a preceptor.

There is an old saying about a chain being as strong as its weakest link.An analogy can be drawn in the clerkship program. Such a program will be asgood as the men who carry it out. Bad preceptors will make for a bad program.But what makes for a "good" preceptor or a "bad" one? What qualities shouldthe preceptor possess.? It is submitted that the most important qualities in apreceptor are: (1) professional competence; (2) an ability to teach; (3) highethical standards.

He should be competent in his chosen profession or one of the objectives ofa clerkship system, the learning of technical skills, is destroyed. After all, theneophyte lawyer can learn the wrong way to do things by himself; he doesnot need an inept tutor. A preceptor must have the ability to teach. The mostskillful lawyer in the world may be unable to convey the reasons for this skillto his pupil. The preceptor must also have the ability and patience to commun-icate with the preceptee on a level at which the latter can comprehend. Finally,he must be a man of great moral stature or another objective of a clerkship, theinculcation of professional ethics, is lost. If the teacher is a rogue, there is adanger that the pupil may become one also.

A committee appointed by the New Jersey Supreme Court to investigate theclerkship system in that state, listed three "principal weaknesses" in the existingsystem and the first of them concerned preceptors. The committee said that,S. . . law-office economics and the pressing pace of present-day practice . . .

make it difficult for counsellors to find or to afford the time to do an adequatepreceptoral job.""

What do the states consider to be the desired qualities in a preceptor? Alook at their requirements is not very illuminating. In most of them it appearsthat any attorney qualified to practice before the courts of that state is qualified toact as a preceptor. If it is assumed that every member of the bar possesses thethree qualities suggested, then there is no problem. But apparently not all statesaccept this assumption, for some require that the preceptor have practiced acertain number of years. This should at least minimize the possibility that thepreceptor is not well versed in the technical skills of the profession, for these

4,Fuller, supra note 18 at 87.45 Report of the New Jersey Supreme Court's Committee on Training for the Practice of Law

39 (1957).

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skills are generally achieved by repeated experience." This being so, the prac-titioner with a certain minimum number of years experience should possess areasonable degree of skill. Where the arbitrary line is drawn, will dependon the individual judgments of the drawers.

The fear that all attorneys are not also qualified preceptors was anotherreason why the Kansas City Bar refused to adopt a clerkship system." In fact,the statement has been made that the difficulty involved in obtaining qualifiedpreceptors has led to the rejection of a proposed clerkship in three differentstates."

Should the states go further and require that, in addition to the-requirednumber of years of practice, the preceptor be approved by a board of examiners?A further question is, approved as to what--competence, teaching ability,ethics? Pennsylvania, which is the only state having such a requirement, doesnot tell us. It merely requires that, "The preceptor shall have been approved asto fitness by the State Board and the County Board." " A writer in commentingfavorably on this rule has said that it is one thing to file charges with a grievancecommittee but quite another to disapprove a preceptor.5" It is interesting tonote that certain persons have been disapproved in that state, ". . . for thereason, to put it euphemistically, they were too much specialists in one line togive students needed general advice, as, for example to put it less euphemisti-cally, ambulance chasers .. 51 On the other hand, it has been said of such asystem of approval that, "... one wonders whether this effort accomplishesvery much other than freeing students of the risk of wasting their time with obvi-ous incompetents." 52

Another consideration is the time problem. The preceptor may be a compe-tent lawyer, good teacher and a man of the highest possible moral scruples, andstill the clerkship could be a failure. This is because the demands of a busy prac-tice may be such that he does not have a sufficient amount of time to devote tohis clerk. It has been said that, ". . . If an active lawyer is willing to take on astudent, his practice prevents his giving the student the attention he deserves." 3

46Cavers, supra note 16.47 One of their major criticisms was the difficulty of obtaining the services of sufficient ex-

perienced and qualified practitioners. Kansas City, supra note 20.48 Note, Restrictions on Admission to the Bar: By-Product of Federalism, 98 U. PA. L. REv.

710 (1950). The states were Kansas, Michigan and Texas.49 Rule 8, Rules of the Supreme Court of Pennsylvania. "Fitness" is not defined.B0Appel, The Pennsylvania System, 7 Am. L. Sch. Rev. 928 (1933) and also found in 3 k

BAR EXAmINER 10 (1933). The author says that ". . . Particularly in the large counties, thelocal boards have been courageous enough to disapprove a lawyer as a preceptor when they felt thathis influence is not the sort which they wished to continue."

51 Douglas, Pennsylvanias New Requirements for Bar Admission, 14 A.B.A.J. 669 (1928).52 Kirkwood, supra note 20.53 Appel, supra note 50 at 931.

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It should be remembered that the preceptor is not primarily a teacher, but apractitioner, earning his living from his practice. If it comes down to a questionof making a choice between sacrificing some of this practice or devoting less timeto his clerk, which choice will the preceptor make?

Another danger lies in the fact that if the preceptor does not devote a suffi-cient amount of time to his student so that the relationship between them isperfunctory and a mere formal adherence to the rules, it gives the latter theimpression that his chosen profession "winks at half-truths." " Indeed, in re-jecting a proposed clerkship system, the Michigan Bar examined the system inother states and reported that, ". . . in too many cases there has been only per-functory, if any performance . . . by preceptors." " More evidence of this pos-sibility is found in the fact that when the clerkship system first went into effectin one state, many students were hard put to find preceptors, but today there arevery few, if any instances, where this is so. Is this because prospective preceptorshave discovered that they were not really expected to do anything beyond a mereformal compliance with the rules? 5"

Should, therefore, the board, when they certify a preceptor, specify thathe give a certain amount of time to this undertaking? It has been said thatif this were done, ". . . it is doubtful whether enough preceptors, ready, able andwilling to perform can be found."' 7

Looking at the system from a different angle, one writer has pointed upanother problem. ". . . As soon as the law graduate learns enough to be ofvalue he either wants a partnership or starts out by himself-with some of theolder man's best clients." 58

A justice of the Supreme Court of New Jersey recently made the statementthat his state ". . . would abandon its clerkship requirement tomorrow, if [it)had a proper substitute." " There have been a number of proposals made foralternatives to the clerkship system. Would one of these be a "proper substi-tute" ?

One proposal sometimes offered as an alternative is to have a "Junior Bar"whereby the young attorney is given a license to practice in all the courts of thestate. But, he would keep a diary of all his activities for a two to five year periodduring which he is more or less "on probation," and at the end of which period

54 Fuller, supra note 18 at 83.55 Report of the Committee on Legal Education and Admission to the Bar, 17 MxCH. STATE

BAR J. 47, 49 (1938).56 Fuller, supra note 18.57 Kirkwood, supra note 20.58 Readers Defend and Oppose Legal Internship, 30 J. AM. JuD. Soc'Y. 59, 62 (1946).59Jjustice Nathan L. Jacobs, quoted in 28 HA~v.-L. REv. 6 (1959).

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his activities would be reviewed by a committee of lawyers who would look fortwo things: legal incompetence and/or unethical conduct. If either were foundby the committee they would take away the license. Unlike a grievance com-mittee proceeding, the burden would be on the young lawyer to prove that hewas entitled to a permanent license."0 The most glaring fault of such a systemis the opportunity which it presents for discrimination. Needless to say, it hasnot met with any success.

Another proposal is that of Dean Stason of Michigan. He would have asystem under which the law graduate would take two bar examinations. Afterthe first, he could practice only in certain lower courts. The second bar examin-ation would be on "practical" matters. Also required would be a one yearattendance in an "Institute for Post-graduate Professional Education." This re-quirement, however, would not be imposed on all, but rather only on those whodid not get a job in a large law firm where they would be under supervision any-way. 1 The injustice of such a system, especially on those who for one reasonor another do not begin their career in a "large" firm (whatever that is), prob-ably accounts for the lack of enthusiasm with which it has been greeted.

Legal Aid Clinics are often mentioned as alternatives to a clerkship system.

A Legal Aid Clinic is a teaching device which provides clinical training forlaw students in a way which is quite like the experience provided for the medi-cal student during the latter's internship. It is also a law office in which a partof the staff consists of law students who, by doing part of the work at thatoffice under the immediate supervision of qualified attorneys, learn some of thedifficulties of extracting relevant facts from unskilled witnesses and gain experi-ence in applying their school-learned theories to those facts and recommendingproper action. . . . The students . . . gain valuable experience that is notavailable elsewhere in the curriculum, experience that helps them to bridge thegap between the classroom and the courtroom and officehI2

Professor Brad-way, the "tireless pioneer in this field," 6 would take issuewith the last portion of the above definition. He views such a clinic not as abridge over any gap but rather as concrete to cement together and fill the inter-stices between the rocks of knowledge acquired in law school." Regardless ofthe simile one uses, the fact remains that the clinic is a way in which a studentcan gain practical experience. Another point to be noted in favor of such

60 Scott, Junior or Interlocutory Admission to the Bar, 3 BAR EXAMINER 99 (1933).61 Stason, supra note 24.6 Boyer, Legal Aid and Legal Education, 18 THE SHINGLE 205 (1955).63 Harno, supra note 1 at 174.64 Bradway, Legal Clinics and Law Students: Rocks and Cement for Better Legal Education,

41 A.B.A.J. 425 (1955).

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clinics over clerkships is that they would eliminate " the unpredictabilityof the older lawyer responsible for the training." "

What do the students who have received training in clinics think of them?A survey of graduates of two different law schools revealed a unanimous opinionthat they were valuable aids."' This is in marked contrast with a survey of law-yers in one state having a clerkship requirement. In that state it was discoveredthat ". . . the great majority of Junior Bar members polled indicate a vigorousdissatisfaction with the clerkship system." 67

There are two factors which weigh against the use of a clinic-their greatcost and the fact that to be effective they must be in a city of some size."8 How-ever, after ten years experience with his program at Duke, Professor Bradwayconsiders it to be a success. "9

To conclude, we have seen that clerkship, while a relic of a bygone agewhich flourished for a time and then, with the advent of the university lawschool, gradually withered, did not die. Further, whether its advantages out-weigh its disadvantages is a matter on which reasonable men differ. Otherwriters have concluded:

Unless the benefits of clerkship are great enough to justify the additional. period of training which the law school graduate must endure, it seems

inevitable that the requirement will some day be abolished.70

And even some who advocate the system recommend a spelling out in detail whatthe requirement will be so that preceptors will know what is required of them 71

while others do not think that this will remove enough of the bad features of sucha system to warrant its continuance.72

There are other considerations relevant here. It has been pointed out thatforty-five states see fit to do without a clerkship requirement, and it is interesting

65 Winters, Legal Aid and Legal Internship Should Go Together, 30 J. AM. JUD. Soc'Y. 35,36 (1946). The University of Pittsburgh has, since 1951 required its students to attend onesummer session devoted to working out "practical problems." Its former dean is of the opinionthat it gives the participants as much practical experience as a clerk gets in six months. Currie,supra note 12. Such courses are not without their critics, however. One writer has said thatlaw schools only teach "manuevers" and that "practice and procedure can be learned efficientlyand effectively only by practice and that practice must be out on the battle-ground and not in theclassroom." Souter, Internship for Lawyers, 29 J. AM. JUD. Soc'Y, 186 (1945).

There are also those who think that law schools should practice law. See Frank, A Plea forLawyer-Schools, 56 YALE L. J. 1303 (1947) and Why Not a Clinical Lawyer-School, 81 U. PA.L. REV. 907 (1933).

66 Harno, supra note 1 at 175.67 Supra note 28.68 Johnstone, Law School Legal Aid Clinics, 3 J. LEGAL ED. 535 (1951).69 Bradway, Legal Aid Clinic Instruction at Duke University (1944).70 Di Prete and Brill, supra note 35.71 Boyer, supra note 15.72 Currie, supra note 12 at 238.

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to note that the American Bar Association has never once recommended a clerk-ship. 3 Also significant is that a survey of law school deans indicated that fortywere opposed to it, sixteen were doubtful about it, and only eight were in favorof the clerkship system."

It would seem, then, that:

The post-law school clerkship requirement is like "hazing" in college-those who have been through it don't see why the succeeding generationsshouldn't overcome the same barriers that impeded and annoyed them.75

73 Currie, supra note 12 at 237.74 Cheatham, supra note 29., Supra note 28 at 229.